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Thursday, Sep. 12, 2002

In this age of warehousing inmates, expanding victims' rights, and building more prisons, many do not care about the constitutional rights of inmates. They argue that prisoners forfeited their constitutional privileges when they violated the rights of others in committing their heinous crimes.

But even a staunch conservative like U.S. Supreme Court Justice Sandra Day O'Connor has written: "Prison walls do not form a barrier separating inmates from the protections of the Constitution." Imprisonment itself (and in some cases, a future death sentence) is the penalty. Further abuses suffered by inmates at the hands of prison officials are no part of that penalty, and should be recognized for the wrongs - and the law violations - that they are.

It should also be remembered that when inmates' visits are concerned, the visitors' rights are implicated too. So are society's interests in rehabilitation: Visits can help maintain human connections for prisoners who might otherwise become alienated and incorrigible.

Refreshingly, two federal appeals courts recently recognized that prisoners do, as Justice O'Connor made clear, retain their constitutional rights - and so do those who seek to visit them. This year, both struck down as unconstitutional restrictive policies limiting or banning prison visits.

The Ninth Circuit's Decision: A Victory For Inmates, Visitors, and Gay Rights

In Whitmire v. State of Arizona, the U.S. Court of Appeals for the Ninth Circuit held that a gay prison inmate and his partner could properly file suit to challenge a ban on kissing or embracing same-sex visitors who are not relatives or members of the inmate's immediate family.

The inmate and his partner had contended in their complaint that the ban violated their rights under, among other laws, the First Amendment and Title VII of the Civil Rights Act of 1964. The district court, however, had dismissed the suit, which led to the appeal.

The Arizona Department of Corrections contended the policy was necessary to prohibit retaliation against gay inmates. The Ninth Circuit was skeptical, though. It noted that under the applicable law, prison officials must show a "valid, rational connection" between the regulation and its safety interests. Yet the visitation policy, according to the appeals court, seemed clearly to lack a "common-sense connection to the concerns against homosexual labeling."

Also this year, the Court of Appeals for the Sixth Circuit issued a detailed ruling striking down several limitations on inmate visits in Bazzetta v. McGinnis. Politically, the Sixth Circuit is more conservative than the liberal Ninth, so its concern for inmates' rights was even more heartening - showing that more conservative courts, too, are following Justice O'Connor's observation that such rights are not extinguished at the prison door.

The Michigan Department of Corrections had banned even non-contact visits from prisoners' minor relatives; from their children, when parental rights had been terminated; and from former inmates who do not belong to the inmate's immediate family.

The Department had also prohibited those inmates who had violated its drug abuse policies twice from receiving any visits at all. Finally, it had required that immediate family or a legal guardian accompany children on a prison visit.

Several inmates, however, challenged the policies as violation of their First Amendment rights to free association. This time, the federal district court sided with the plaintiffs. And the appeals court - in an excellent opinion penned by the aptly-named Judge Gilbert S. Merritt - affirmed. "Under our constitution, even those lawfully imprisoned for serious crimes retain some basic constitutional rights," Judge Merritt wrote - echoing Justice O'Connor.

The Michigan Corrections Department Violated Even The Lenient Legal Standard

On behalf of the appeals panel, Judge Merritt applied the prevailing standard for reviewing inmate constitutional challenges to prison policies, which derives from the U.S. Supreme Court's 1987 decision in Turner v. Safley. As Judge Merritt noted, it is "deferential" and "forgiving." But fortunately, it does not forgive every violation that a prison can rationalize.

The Safley standard provides that a prison regulation that impinges on inmates' constitutional rights is constitutional if it is reasonably related to a legitimate penological interest, such as safety.

The Michigan Department of Corrections contended that the bans were necessary to reduce the number of visitors to a manageable level, stop the smuggling of contraband, and protect children. The court, though, held the prison officials must not only cite these interests, but actually show that there was a valid, rational connection between the interests and the regulations.

The Safley standard also asks whether prisoners retain a viable, alternative means of exercising their right; whether the assertion of the right will negatively impact prison staff and other inmates; and whether there are ready alternatives to the regulations. Looking to these criteria, the appeals court found in the prisoners' favor on all three.

The court also strongly condemned the policy that banned all visits for those inmates who had violated the department's rules against drug possession and drug use. This permanent ban on visits, the court reasoned, violates both the Eighth Amendment's prohibition on cruel and unusual punishment, and the Due Process Clause.

The Michigan Department of Corrections has sought review of the Sixth Circuit's decision by the U.S. Supreme Court. It can only be hoped the Court will either decline review, or affirm the Sixth Circuit's well-reasoned decision.

How Violations of Inmates' Rights Can End Up Violating Others' Rights, Too

The protection of inmates' constitutional rights is important not only in itself, but also because leaks in our constitutional cracks often begin in prison inmate decisions. When we curtail inmates' rights, we inevitably end up curtailing our own as well.

For instance, one year after the 1987 decision in Safley, the Court diminished the rights of public school students First Amendment rights in the 1988 decision in Hazelwood Sch. Dist. v. Kuhlmeier - applying a very similar standard.

Whereas Safley had required prison regulations to be "reasonably related to a legitimate penological interest," Hazelwood required that school regulations "reasonably related to a legitimate pedagogical concern." Suddenly schoolchildren were being treated almost like prisoners: any regulation could pass muster if it was reasonably related to the interest the authorities cited.

The extent to which we protect inmates' constitutional rights - ensuring that, consonant with due process, they suffer the penalty to which they have been sentenced, and not a greater one - also shows us what type of progress we have made as a civilized nation and people.

The Sixth Circuit in Bazzetta persuasively quoted a 1910 speech by Winston Churchill that makes this point with exceptional eloquence:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm and dispassionate recognition of the rights of the accused against the state, and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment ... and an unaltering faith that there is a treasure, if you can only find it, in the heart of every man - these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.

David L. Hudson Jr. is an attorney with the First Amendment Center at Vanderbilt University. He writes regularly on First Amendment and employment-law issues for a variety of publications.

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